Intellectual
Property Rights
Patents
Act, 1970
CHAPTER VII: PROVISIONS FOR SECRECY OF CERTAIN INVENTIONS
35. Secrecy directions relating to inventions relevant for defence purposes
(1) Where,
in respect of an application made before or after the commencement of
this Act for a patent, it appears to the Controller that the invention
is one of a class notified to him by the Central Government as relevant
for defence purposes, or, where otherwise the invention appears to him
to be so relevant, he may give directions for prohibiting or restricting
the publication of information with respect to the invention or the communication
of such information to any person or class of persons specified in the
directions.
(2) Where
the Controller gives any such directions as are referred to in sub-section
(1), he shall give notice of the application and of the directions to
the Central Government, and the Central Government shall, upon receipt
of such notice, consider whether the publication of the invention would
be prejudicial to the defence of India, and if upon such consideration,
it appears to it that the publication of the invention would not so prejudice,
give notice to the Controller to that effect, who shall thereupon revoke
the directions and notify the applicant accordingly.
(3) Without
prejudice to the provisions contained in sub-section (1), where the Central
Government is of opinion that an invention in respect of which the Controller
has not given any directions under sub-section (1), is relevant for defence
purposes, it may at any time before acceptance of the complete specification
notify the Controller to that effect, and thereupon the provisions of
that sub-section shall apply as if the invention were one of the class
notified by the Central Government of the directions issued by him.
36. Secrecy directions to be periodically reviewed
(1) The
question whether an invention in respect of which directions have been
given under section 35 continues to be relevant for defence purposes shall
be re-considered by the Central Government within nine months from the
date of issue of such directions and thereafter at intervals not exceeding
twelve months, and if, on such re-consideration it appears to the Central
Government that the publication of the invention would no longer be prejudicial
to the defence of India it shall forthwith give notice to the Controller
accordingly and the Controller shall thereupon revoke the directions previously
given by him.
(2) The
result of every re-consideration under sub-section (1), shall be communicated
to the applicant within such time and in such manner as may be prescribed.
37. Consequences of secrecy directions
(1) So
long as any directions under section 35 are in force in respect of an
application-
(a) the
Controller shall not pass an order refusing to accept the same; and
(b) notwithstanding
anything contained in this Act, no appeal shall lie from any order of
the Controller passed in respect thereof:
PROVIDED
that the application may, subject to the directions, proceed up to the
stage of the acceptance of the complete specification, but the acceptance
shall not be advertised nor the specification published, and no patent
shall be granted in pursuance of the application.
(2) Where
a complete specification filed in pursuance of an application for a patent
for an invention in respect of which directions have been given under
section 35 is accepted during the continuance in force of the directions,
then-
(a) if,
during the continuance in force of the directions; any use of the invention
is made by or on behalf of, or to the order of the government, the provisions
of sections 100, 101 and 103 shall apply in relation to that use as if
the patent had been granted for the invention; and
(b) if
it appears to the Central Government that the applicant for the patent
has suffered hardship by reason of the continuance in force of the directions
the Central Government may make to him such payment (if any) by way of
solatium as appears to the Central Government to be reasonable having
regard to the novelty and utility of the invention and the purpose for
which it is designed, and to any other relevant circumstances.
(3) Where
a patent is granted in pursuance of an application in respect of which
directions have been given under section 35, no renewal fee shall be payable
in respect of any period during which those directions were in force.
38. Revocation of secrecy, directions and extension of time
When any
direction given under section 35 is revoked by the Controller, then, notwithstanding
any provisions of this Act specifying the time within which any step should
be taken or any act done in connection with an application for the patent,
the Controller may, subject to such conditions, if any, as he thinks fit
to impose, extend the time for doing anything required to be done by or
under this Act in connection with the application, whether or not that
time has previously expired.
39. 3[* * *]
40. Liability for contravention of section 35 or section 39
Without
prejudice to the provisions contained in Chapter XX, if in respect of
an application for a patent any person contravenes any direction as to
secrecy given by the Controller under section 35, 4[***] the application
for patent under this Act shall be deemed to have been abandoned and the
patent granted, if any, shall be liable to be revoked under section 64.
41. Finality of orders of Controller and Central Government
All orders
of the Controller giving directions as to secrecy as well as all orders
of the Central Government under this Chapter shall be final and shall
not be called in question in any court on any ground whatsoever.
42. Saving respecting disclosure to government
Nothing
in this Act shall be held to prevent the disclosure by the Controller
of information concerning an application for a patent or a specification
filed in pursuance thereof to the Central Government for the purpose of
the application or specification being examined for considering whether
an order under this Chapter should be made or whether an order so made
should be revoked.
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